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Uttering a Threat

The Charge

Section 264.1 of the Criminal Code sets out that everyone who knowingly utters a threat to another person to cause death or bodily harm, or to damage or destroy property, is guilty of an offence. The essence of the offence is that the prosecutor must prove that the accused intended their remarks to genuinely cause the complainant to intimidate or to be taken seriously. There is no requirement that the intended victim be aware of the threat; the offence is made out upon proof that the accused intended the words to cause fear or alarm. In determining whether or not the accused’s statements are a threat, the words must be viewed objectively in the context in which they were spoken. The words must have been uttered with an intent to intimidate or to be taken seriously.

Uttering a threat is a hybrid offence meaning that the Crown has the option of proceeding by indictment and to seek a sentence of up to five years in jail. Alternatively, the Crown can proceed summarily, in which case the maximum sentence is two years less a day. There are no mandatory minimum sentence requirements for uttering threats. Non-custodial sentences are available.

The Investigation

Unlike many other criminal investigations, in threatening charges, the substantive evidence usually comes not from the police, but from the complainant who says you threatened them. Upon receiving the complaint, police will seek out the suspect and attempt to obtain their side of the story.

When contacted by a suspect prior to their arrest, we can be of significant assistance. We will make enquiries to determine who the investigating officer is. Because of the laws concerning solicitor/client privilege, we can act as a “buffer” between our client and police. We can speak on our client’s behalf without risk of creating incriminating evidence against them. We will negotiate to have our client not charged, or if charged, to be released from custody quickly and on the least restrictive terms that are appropriate. Typical release conditions include no contact with the complainant, including face-to-face contact, or indirect contact by phone, text, email or through a third party. Other conditions may include no weapons, no alcohol or other similar protective conditions.

Recent Successes

R. v. L.M. – Vancouver Provincial Court

Charge: Mischief Over $5000.
Issue: Whether Crown could prove the value of damage alleged to have been caused by our client.
Result: Mr. Mines was able to persuade Crown counsel that because it could not accurately prove the value of damage, and that our client had taken appropriate steps of self-rehabilitation,  Crown elected to not approve any charges. No criminal record.

R. v. H.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this "road rage" case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances and the circumstances of the incident which resulted in Crown staying the charge after our client completed Alternative Measures. No criminal record.

R. v. J.S. – North Vancouver Provincial Court

Charges: Uttering Threats (x3).
Issue: Whether or not our client was entitled to be sentenced to a conditional discharge rather than being convicted of this offence.
Result: Upon hearing Mr. Gauthier's submissions on our client's behalf, the Court granted our client a conditional discharge rather than entering a conviction. No criminal record.

R. v. S.G. – Surrey Provincial Court

Charges: Assault; Mischief. Issue: Given the rehabilitative steps that we guided our client through and advocating on her behalf that there was a reasonable self defence issue, whether there was a substantial likelihood of securing a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that there was no substantial likelihood of a conviction. Ultimately Crown entered a stay of proceedings. No criminal conviction. No criminal record.

R. v. K.B.K. – Vancouver Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. C.B.S. – Richmond Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. V.L. – Vancouver Provincial Youth Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with criminal charges.
Result: After providing Crown counsel with our client's positive psychological counselling report, Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. v. C.J.X. – Richmond Provincial Court

Charges:  Assault with a Weapon.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with criminal charges.
Result: After providing Crown counsel with our client's  positive psychological counselling report, Mr. Gauthier  was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. v. B.E. – Surrey Provincial Court

Charges: Assault (domestic) x2.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to provide information to Crown counsel on our client's behalf and ultimately persuaded Crown to enter a stay of proceedings. No criminal record.

R. v. A.S. – Vancouver Provincial Court

Charges: B & E, Fraud over $5000, Motor vehicle theft; Identity theft, Driving while prohibited (x2).
Issue: Given our client’s personal circumstances and rehabilitative efforts, what would be the appropriate sentence.
Result:  Mr. Johnston was able to persuade Crown to make a joint submission for time-served, followed by a period of probation. The Crown directed stays of proceedings on several charges.  After hearing Mr. Johnston's submissions on our client's behalf, the sentencing judge noted that he would have ordinarily imposed a lengthy jail sentence for an accused in our client's position, but he accepted the joint submission. No further jail.

R. v. M.A.K. – Vancouver Provincial Court

Charge: Possession of fentanyl and carfentanil for the purposes of trafficking.

Issue: Given the information Mr. Johnston provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.

Result: Mr. Johnston was able to persuade the Crown that there were issues with respect to the Crown's evidence such that it was unlikely our client would be convicted at trial, and that there was insufficient public interest in continuing to prosecute our client in any case. Given this informaton, the Crown directed a stay of proceedings on the charge. No criminal record.

R. v. S.B. – Vancouver Provincial Court

Charge: Carrying a Concealed Weapon.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel regarding the circumstances of the incident and our client's background, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Johnston persuaded Crown counsel that there was insufficient public interest, leading Crown to enter a stay of proceedings. No criminal record.
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The Defence

The typical defences to threatening charges is to establish doubt that the words were ever uttered or, alternatively, that the words uttered were not intended to be taken seriously by the complainant. Clearly, any evidence from third party witnesses or video or audio recordings will be relevant.

As experienced lawyers, we are able to offer significant assistance to clients who contact us before they are contacted by police. We will contact the police investigator and will strive to persuade police to not take you into custody at all or, alternatively, to release you on the least onerous conditions as possible, as quickly as possible. In our more than 25 years of experience, we have been successful in obtaining non-custodial sentences for the majority of our clients charged with uttering threats. We will strive to resolve your threatening charge with alternative measures, a peace bond or a discharge.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.

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